dismissed EB-2 NIW Case: Sales And Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re: 25233946 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 22, 2023 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a sales and marketing officer, seeks employment-based second preference (EB-2) 
immigrant classification as a member of the professions holding an advanced degree and as an individual 
of exceptional ability, as well as a national interest waiver of the job offer requirement attached to this 
EB-2 classification. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 
1153(b )(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner neither 
qualified for classification as an individual of exceptional ability nor established that a waiver of the 
required job offer, and thus of the labor certification, would be in the national interest. The Petitioner 
appealed the matter to us, and we dismissed the appeal, concluding that the Petitioner had not 
established that he was an advanced degree professional 1 or an individual of exceptional ability, nor 
had he established that he was eligible for a national interest waiver of the job offer. 2 We also 
dismissed on the same grounds a subsequently filed motion to reopen and motion to reconsider. 3 We 
dismissed a later motion to reconsider 4 because the Petitioner did not demonstrate that our prior 
decision was in error; since the record did not establish that the Petitioner met the underlying visa 
classification as either an advanced degree professional or an individual of exceptional ability, we did 
not include further discussion of the Dhanasar analysis, as it would have served no meaningful 
purpose. The matter is now before us on a motion to reopen and a motion to reconsider. On motion, 
the Petitioner submits a brief. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the motion 
to reopen and the motion to reconsider. 
I The Petitioner raised . this claim for the first time on appeal. 
2 See (AAO January 27, 2021). 
3 See (AAO August 19, 2021). 
4 See (AAO August 3, 2022). 
I. LAW 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. § 
103.5(a)(2). A motion to reconsider must establish that our decision was based on an incorrect 
application of law or policy and that the decision was incorrect based on the evidence in the record at 
the time of the decision. 8 C.F.R. § 103.5(a)(3). 
The regulation at 8 C.F.R. § 103.5(a)(l)(i) limits our authority to reopen to instances where the 
petitioner has shown "proper cause" for that action. The scope of a motion is limited to "the prior 
decision." Id. We cannot grant a motion that does not meet applicable requirements. See 8 C.F.R. § 
103.5(a)(4). 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification, as either an advanced degree professional or an individual 
of exceptional ability in the sciences, arts, or business. Section 203(b )(2) of the Act. The regulation 
at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the [noncitizen] must have a United 
States doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one of the occupations listed in section 10l(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry in the occupation. 
In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements 
for demonstrating eligibility as an individual of exceptional ability. A petitioner must submit 
documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii). 
Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), states that after a petitioner has established 
eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as a 
matter of discretion, 5 grant a national interest waiver if the petitioner demonstrates: (1) that the 
noncitizen's proposed endeavor has both substantial merit and national importance; (2) that the 
noncitizen is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be 
beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. 6 
5 See also Poursina v. USCIS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS decision to grant or deny 
a national interest waiver to be discretionary in nature). 
6 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
2 
II. ANALYSIS 
As an initial matter, we note that the review of any motion is narrowly limited to the basis for the prior 
adverse decision. In dismissing the prior motion to reconsider, we concluded that the Petitioner did 
not establish the following: (1) that he qualifies for the underlying classification either as an advanced 
degree professional or as an individual of exceptional ability; and (2) proper cause for reconsidering 
our decision. We stated that further discussion of the Dhanasar analysis would serve no meaningful 
purpose because the Petitioner did not establish eligibility for the underlying visa classification. 
A. Motion to Reopen 
On motion to reopen, the Petitioner does not state new facts supported by documentary evidence to 
establish that he qualifies for the underlying classification either as an advanced degree professional 
or as an individual of exceptional ability. 8 C.F.R. § 103.5(a)(2). Therefore, we will dismiss the 
motion to reopen. 
B. Motion to Reconsider 
On motion to reconsider, the Petitioner disagrees with our prior decision but does not demonstrate that 
the decision was based on an incorrect application of law or policy and that it was incorrect based on 
the evidence in the record at the time of the decision. 8 C.F.R. § 103.5(a)(3). As explained in our 
prior decision, the Petitioner must first establish that he is eligible for the underlying classification as 
either a professional holding an advanced degree or as an individual or exceptional ability. 
As he stated in the brief accompanying his prior motion to reconsider, the Petitioner again incorrectly 
asserts that "a minimum of ten years professional work experience may satisfy the advanced degree 
requirement." The Petitioner appears to conflate language concerning requirements found in 
regulations applicable to other employment-based visa classifications 7 with requirements for the EB-
2 classification at 8 C.F.R. § 204.S(k). While the Petitioner asserts that either work experience alone 
or a combination of experience and educational credentials may be considered as equivalent to a 
bachelor's degree, that is not the case for the EB-2 classification; the regulations require, in part, 
receipt of a U.S. bachelor's degree or a degree that is the foreign equivalent, followed by at least five 
years of progressive experience in the specialty. The record does not include documentation to 
establish that the Petitioner possesses a U.S. bachelor's degree or its foreign equivalent. 8 Further, 
without evidence of such a degree, we cannot conclude that any of the Petitioner's experience qualifies 
as post-baccalaureate experience. The Petitioner has not established that he is eligible for the requested 
classification as an advanced degree professional. 
7 Compare 8 C.F.R. § 214.2(h)(4)(iii)(D) (defining "equivalence to completion ofa United States baccalaureate or higher 
degree" for purposes ofH-1 B classification). Where combinations of education or experience may equate to baccalaureate 
degrees, the Act and regulations state so explicitly. See section 214(i)(2)(C) of the Act, 8 U.S.C. § 1184(i)(2)(C) (allowing 
H-IB workers to have "experience in the specialty equivalent to the completion of [a bachelor's] degree"); see also 8 
C.F.R. § 2 l 4.2(h)(4)(iii)(C)(4) (H-1 B workers may have "education, specialized training, and/or progressively responsible 
experience that is equivalent to completion of a United States baccalaureate ... degree"). The regulations pertaining to the 
immigrant classification sought in this matter do not contain similar language. 
8 The Petitioner does not assert, and the record does not reflect, that he has a master's or higher degree. 
3 
Regarding the Petitioner's claims that he is an individual of exceptional ability, as discussed in 
previous decisions, the record does not establish that he meets any of the criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A)-(F). Further, in our prior decisions, we explained that the Petitioner did not 
provide new documentary evidence, offer specific arguments regarding the claimed criteria, or identify 
any erroneous conclusion of law or statement of fact. While the Petitioner continues to claim that he 
qualifies for the requested classification, he has not demonstrated that our prior decision was in error. 
The Petitioner has not established that he is eligible for the requested classification as an individual of 
exceptional ability. 
Because the record does not establish that the Petitioner meets the underlying visa classification as 
either an advanced degree professional or an individual of exceptional ability, further discussion of 
the Dhanasar analysis would serve no meaningful purpose. 
The Petitioner has not established that our prior decision, the dismissal of his motion to reconsider, 
was based on an incorrect application of law or policy and that it was incorrect based on the evidence 
in the record at the time of the decision, as required by 8 C.F.R. § 103.5(a)(3). Therefore, we will 
dismiss the motion to reconsider. 
III. CONCLUSION 
For the reasons discussed, the evidence provided in support of the motion to reopen and the motion to 
reconsider does not overcome the grounds underlying our prior decision and does not meet the 
requirements of a motion to reopen or a motion to reconsider. Therefore, the motions must be 
dismissed. 9 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
9 The regulation at 8 C.F.R. § 103.S(a)(l )(iii) requires the motion to be "[a]ccompanied by a statement about whether or 
not the validity of the unfavorable decision has been or is the subject of any judicial proceedings and, if so, the court, 
nature, date, and status or result of the proceeding." In addition to the deficiencies noted above, the Petitioner did not 
include the required statement; therefore, his motion does not meet the applicable requirements. See 8 C.F.R. § 103 .5( a)( 4). 
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